BRIAN KIMMINS VS. BOROUGH OF BRIELLE PLANNINGÂ Â BOARD(L-2949-15, MONMOUTH COUNTY AND STATEWIDE)
A-1394-16T3
| N.J. Super. Ct. App. Div. | Nov 15, 2017Background
- Michael and Lori Centrella owned a cork-shaped, waterfront lot in Brielle (~1 acre) that contained a guest cottage 2.57 feet from the northern property line; they demolished the main house years earlier and planned to remove the cottage after subdividing.
- In Nov. 2014 the Centrellas applied to the Brielle Planning Board to subdivide the parcel into three lots; the plan required two variances (a pre-existing nonconforming structure and a lot-width variance for the southern corner lot).
- The Board held three meetings: applicants presented two expert witnesses; the Board declined to permit plaintiffs/objectors to present their planning expert, treating later comments as public comment only and limiting time.
- The Board granted the subdivision and both C(1) and C(2) variances in a July 2015 resolution, finding practical hardship from the lot shape and that the cottage was a preexisting condition that would be removed.
- Plaintiffs challenged the Board decision in the Law Division; the trial court vacated the variances and remanded, concluding the Board denied objectors due process by refusing their expert testimony and that the Board’s findings lacked legal and factual support.
- The Appellate Division affirmed: it held the Board abused its discretion in denying objectors the chance to present expert testimony and found the record inadequate to support the Board’s variance findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board denied objectors due process by refusing plaintiffs' expert testimony | Board improperly prevented objectors from presenting expert evidence, denying a fair hearing | Board had discretion to set hearing rules and limit testimony under N.J.S.A. 40:55D-10(d) | Held for plaintiffs: Board abused its discretion; objectors were denied a fair opportunity to present experts, violating due process |
| Whether a C(1) (undue hardship) variance was supported | No evidence that hardship was non-self-created; subdivision creates nonconforming lots so C(1) relief improper | Hardship arises from the lot’s unique cork/pie shape, not self-created by applicants | Held for plaintiffs: C(1) relief unsupported because applicants sought to create nonconforming lots and hardship was not properly established |
| Whether C(2) (positive outweighs negative) variance was supported | Board resolution lacks factual/legal support: failed to explain relation to MLUL purposes or lot-width requirement | The subdivision better fits zone character (fewer larger lots) and removes nonconforming cottage, so C(2) relief appropriate | Held for plaintiffs: Record and Board findings insufficient to support C(2) variance; trial court correctly vacated variances |
| Whether the cottage was a lawful preexisting nonconforming structure supporting relief | Plaintiffs: record does not show when cottage was built or when ordinance made it nonconforming; cannot rely on presumed preexisting nonconformity | Defendants: cottage is preexisting nonconforming and will be removed, supporting grant | Held for plaintiffs: Board lacked factual basis to conclude cottage was a lawful preexisting nonconformity |
Key Cases Cited
- Bressman v. Gash, 131 N.J. 517 (N.J. 1993) (c(1) relief may be supported when physical lot characteristics constrain reasonable use)
- Lang v. Zoning Bd. of Adjustment, 160 N.J. 41 (N.J. 1999) (undue hardship need not render property useless but must inhibit extent of use)
- Green Meadows at Montville, LLC v. Planning Bd. of Montville, 329 N.J. Super. 12 (App. Div. 2000) (c(1) relief unavailable to remedy self-created hardship from subdividing into nonconforming lots)
- Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189 (App. Div. 2009) (lists c(2) variance considerations: relation to property, MLUL purposes, public good, balancing benefits and detriments, and zoning plan integrity)
- Ten Stary Dom P’ship v. Mauro, 216 N.J. 16 (N.J. 2013) (applicant seeking c(1) variance must prove particular property conditions create hardship)
- Witt v. Borough of Maywood, 328 N.J. Super. 432 (Law Div. 1998) (planning boards must afford objectors a fair opportunity to address planning issues and present witnesses)